Sunday, May 27, 2012

The Haj Subsidies case Rafique Bhikan v. Union of India was filed as an Special Leave Petition in the Suprme Court. The Supreme Court transferred a number of other cases with similar issues to itself. The UOI challenged the order of the Bombay High Court, where earlier, petitioners who were private tour operators, had challenged some of the eligibility criteria under the 2011 Haj Policy. The SC stayed the directions to allocate a certain number of seats in October 2011 and decided to examine the Haj Policy in detail. The orders were issued by Justice Aftab Alam. The Bench comprised Justice Alam and Justice Desai. The Haj Policy

The order places the welfare of the Haj pilgrim as the primary consideration for the government while granting recognition and registration to private tour operators. It draws a distinction between government contracts where commercial interests are at stake and whether there is a "larger public cause". Justice Alam draws upon earlier decisions rendered by him where a larger public cause was at stake - printing of government school textbooks, supply of indelible ink to the Election Commission. If so, court interventions are justified only if the criteria used are completely subjective or there is demonstrable malice.

The order then examines various eligibility criteria under the 2012 Haj Policy and approves it. None of the criteria are found to be unreasonable. The pilgrim's welfare is seen as central to the case at hand.

The GoI, the Haj Committees at the Central and State level were asked to report on a) selection of pilgrims b) charges applied to them and c) facilities provided within a period of two months.

The Haj Subsidy

It further goes on to issue a number of suggestions with respect to the Haj Subsidy given by the Government of India. Its constitutional validity had already been upheld in a previous case i.e. Prafull Gordia v. Union of India. (2011) 2 SCC 568. Here, Justice Alam states that there is no justification for charging the pilgrims a much lower fare than the cost of a return journey from Jeddah. Justice Alam uses an interpretation of the Quran to state that borrowing or using other people's means to carry out the Haj was impermissible. The implication is that if one were a "good" Muslim, then they would be uncomfortable with the Haj subsidy. It asks the Government to progressively reduce the subsidy and eliminate it within a period of ten years.

The Goodwill Haj Delegation

The Goodwill Haj Delegation was examined for reasonableness. One of the GoI's reasons was to spread goodwill to the Kingdom of Saudi Arabia and to the Indian pilgrims. Examining the composition of the delegation over the years, the Court found no reasonable selection criteria. Some persons had gone three or four times. It was held that this was a violation of Article 14 of the Constitution.

Further, the GoI affidavit had stated that one of the reasons for the Delegation was to oversee the welfare of the pilgrims. The Court held that the Haj Committee of India, the Consulate General in Jeddah and the Indian embassy in Riyadh were responsible for the same.

It directed that the practice of a goodwill delegation must come to an end.

We discussed among other things, the version of secularism that advocates "principled distance" of the state from all religions. We discussed Justice Alam's position on secularism, referring to his published pieces. [e.g. 2009 10 SCC (Journal) 60.] We discussed the consequences of principled distance, especially in relation to the state's economic involvement vis-a-vis religious communities (for instance, as in Article 27) as opposed to the "reform" question that is addressed in Article 25. For instance, what was troubling the Court here - the quantum of the subsidy or the subsidy itself? We discussed the earlier legal landmarks such as Shah Bano and the Sachar Committee Report, where the government specifically addressed the Muslims (in relation to Justice Alam's comment that the SC in the case was not trying to speak on behalf of all Muslims). Finally, we discussed the use of religious texts by the Supreme Court in its reasoning.

On 17 May 2012, we
discussed the issue of judicial regulation of media in the context of the
Sahara India Constitution Bench. Please note that the SC has reserved its
judgment on this issue.

The proceedings
happened in the course of Sahara India
Real Estate Corporation v. SEBI [C.A. No. 9813/2011] A news channel CNBC TV-18
had reported on its financial strategy made before SEBI. Sahara India made an
interlocutory application before the Court asking that the media be restrained
from publishing this material. Fali Nariman was representing Sahara in this
matter and made the application. Arvind Datar and Pratap Venugopal, appearing
for SEBI, pleaded ignorance about how this material had got into the hands of
the new channel. Earlier, according to a news report in Mint, the eligibility
criteria for journalists was sought to be tightened in the light of the
Vodafone tax dispute, but journalists made a representation to the Court's
Press Committee (offically known as the Law Reporting Council) headed by former
Justice Dalveer Bhandari and the norms
were relaxed. The Bench consisted of Chief Justice SH Kapadia and Justices D.
K. Jain, S. S. Nijjar, Ranjana Prakash Desai, and J. S. Khehar. A notice was
saying that anyone who wished to intervene could. Note that The CJ also heads
the Law Reporting Council now. Several newspapers, the Press Council of India
and so on intervened. Soli Sorabjee and KK Venugopal were amici. Several of the
lawyers, including Fali Nariman and Prashant Bushan made the submission that this
would result in curbing freedom of the press. They said that witness statements
as well court proceedings were freely reportable. Harish Salve on the other
hand, supported the move by saying that media reporting would result in a
chilling effect on the press. The SC
reserved its verdict. The next listing for final hearing is on 30 May
2012.

We discussed the
important precedent in the case of Naresh Sridhar Mirajkar v. State of
Maharashtra (1966), a 9 judge bench of the Supreme Court held that the High
Court had inherent powers to ask that a witness testimony in a particular case
be postponed from reporting. This has been cited in the course of arguments. In
this case, the witness had pleaded that it would hurt his business interests.
The dissent by Justice Hidayatullah noted that if it was a public trial in
general, there was no reason why a part of the trial could be made in camera.
The majority judgment by Justice Gajendragadkar has fairly specious reasoning.
But notably, postponement of publication was expressly held not to violate the
freedom of speech and expression since it was only theincidental effect of a
judicial order. Following which, by 1972, Bennett Coleman (1972) 2 SCC 788,
decides that the pith and substance test does not apply to restrictions on
newspapers, although Justice Mathew's dissent holds that the Mirajkar majority
was right.

We also looked at
Rajendra Sail v. M.P. High Court Bar Association (2005) 6 SCC 109, where
Justice YK Sabharwal observed that fair criticism of a court judgment was
alright, since judgments were public documents. However, since judges cannot
reply to some of this criticism, every effort must be made to be doubly
careful. The integrity of the Court should preserved - and this involves not
attributing bias or personal motives of judges deciding the question. If so,
the journalist can be hauled up for contempt. Here, since the parties had
tendered unconditional apologies, they were let off. The Court took into
account 24 hour news channels, and said that they should engage in
sensationalism. However, this did not relate to a sub-judice matter.

By framing
"guidelines", is the SC approving of pre-censorship by other means?
Most recently, in the BMW case (RK Anand v. Delhi High Court (2009) 8 SCC 106
), the Court held that NDTV's sting operation would not amount to trial by
media. This is not a licence for the media to publish anything, but it
definitely does not mean that guidelines can be formulated. This would amount
to pre-censorship which the court does not endorse.

Suggestions for
self-regulation have been successful in the SC in the past. The observations in
Ajay Goswami v. Union of India (2007) 1 SCC 243 by Justice AR Lakshmananare
also interesting - "the regulation of television broadcasting should not be
that adults should watch what is fit for children." It was important to
keep in mind that norms on regulation of media already exist. S.14 of the Press
Council Act, 1978 was sought to be amended, since it addressed this question.
Derecognition of newspapers or removal of accreditation of a journalist
possibly could address this issue The Court also highlighted the provisions of
the Indecent Representation of Women Act. The notion ofself-regulation of media
was approved here - with respondents Times of India and Hindustan Times being
commended for their in-house mechanisms.

We looked at the
stances adopted by the various intervenors in the case. It was interesting to
note that in spite of the distinction between print media and other forms of
media have been made, the reporting guidelines sought to be framed in this case
are only for the print media. It would be interesting to investigate decisions
made by the Law Reporting Council of the Supreme Court. We also discussed
whether this violated the the right to know recognised by the SC under Article
19(i)(a). We also had a general discussion on the role of "new media"
and courts.